Collateral Damage

The Unintended Consequences of a Criminal Conviction
– David J. Winer

This legal article was published in the leading law publication called, “The Docket”and the text of the article is below.

Criminal defense practitioners understandably concentrate on the immediate strategy involved in a pending case. With a focus towards the potential sentence, most attorneys rarely cast an eye beyond the potential consequences imposed in court. However, the impact of a conviction can extend well beyond the confines of the court system. Defense attorneys should be aware of, and take into consideration, those extra-judicial consequences.

When considering the potential extra-judicial consequences of a criminal case, it is important to distinguish between a conviction and court supervision. A defendant is considered convicted when a sentence of conditional discharge, probation, straight conviction, or prison is imposed following a guilty plea, a finding of guilty at trial, or an adjudication of juvenile delinquency. In legal parlance, a conviction occurs when a court enters a judgment that cannot be expunged and will remain a permanent part of the defendant’s criminal record.

By contrast, an order of court supervision does not result in a conviction and may be expunged. The supervision statute provides that, upon successful completion of the court-ordered requirements, a conviction is not entered and “the Defendant is discharged and a judgment dismissing the charges is entered.” (730 ILCS 5/5-1-21) It is a common misconception that, because the matter is “dismissed” at the end of the supervision term, it will not appear on a criminal records search. However, absent an expungement, the charge and court disposition will remain discoverable by the public. The chances of this happening are increased by the plethora of private companies conducting background searches by scouring court clerks’ computers. Those searches will reveal information on any case that has not been expunged. Clients are often surprised to find that employers are aware of cases they thought were somehow automatically expunged or no longer existed.

While the collateral consequences of a criminal case can hinge on whether the defendant was convicted or received court supervision, the distinction is not always recognized. A practitioner must be cautious about giving advice in this area and must determine whether only a conviction will lead to a particular consequence or if court supervision can trigger a problem. Below is a list of some of the primary collateral consequences of a criminal case.

Professional Licensing: 20 ILCS 2105

A conviction of many types of offenses can lead to the suspension or revocation of a professional license. The Illinois Department of Professional Regulations has an extensive list in their website (at www. idfpr.com) of the various professions that require licensure and are subject to the consequences of criminal proceedings.

Another example is the Dental Practice Act, which states: “The Department may refuse to issue or renew, or may revoke, suspend, place on probation, reprimand or take other disciplinary measures for any one or a combination of’…’ Conviction in this state or another state of any crime which is a felony…. or a conviction of a misdemeanor, an essential element of which is dishonesty…..” (225 ILCS 25/23)

Also, the American Association of Medical Assistants disciplinary standards set forth grounds of potential denial for CMA credentials or disciplinary action of a member of the CMA for, “The possession use distribution of controlled substances or drugs in any way other than for legitimate therapeutic purposes… the violation of any drug law. (See AAMA Disciplinary Standards and Procedures for the CMA at www.AAMA-NTL.org)

One of our client’s recently applied for Illinois licensure to be a registered nurse and the FBI fingerprint check indicated a 2005 arrest for a “Violation of the Liquor Control Act.” The Illinois Dept of Professional Regulation denied his RN license and prohibited him from practicing. In order to reapply the client must provide to the IDPR a detailed statement of the circumstances, a certified and sealed court disposition and proof of completion of a Victim Impact Panel or other type of counseling program.

Student Financial Aid Eligibility: 20 U.S.C.A. § 1091(r)

Students convicted of possession of a controlled substance may not get federal financial aid for one year after the first offense, two years after the second offense, and forever after the third offense. Students convicted of the sale of a controlled substance may not get federal financial aid for two years after the first offense and forever after the second offense. Students can restore their eligibility by completing a drug rehabilitation program or having the conviction vacated. This prohibition only applies for new applications for financial aid.

Defendants convicted of child abuse, child neglect, or violent or sexual offenses are barred from fostering or adopting children. Convictions for drug and property offenses also bar a person from adopting or fostering children for at least ten years. People with juvenile records are not prevented from fostering or adopting unless they were found delinquent of child abuse or neglect.

Defendants convicted of several enumerated criminal offenses and ordinance violations may have their driver’s licenses suspended or revoked. The above statutes detail over forty offense that lead to a license suspension or revocation. For example, drivers may have their license suspended or revoked for certain drug and theft convictions if they are in physical control of a vehicle. Also, mere possession of alcohol by a minor leads to a driver’s license suspension even if a vehicle is not involved and the minor had nothing to drink. Out of state drivers with DUI charges in Illinois can face severe license sanctions in their home state.

Adults or juveniles convicted of attempting to or committing a sex offense must register with the police as sex offenders from ten years to lifetime. Those convicted of a sex offense against a child cannot reside within 500 feet of a school, playground, child program center, or any facility providing programs directed towards people under 18 years old. They are also prohibited from being in any school property, school building, or public park. A sex offender may not use social networking sites while on probation or parole. The Illinois State Police publishes information online about registered sex offenders, including their names, photos, physical description, addresses, charges, and victims’ ages. Another area to be aware of is the Violent Offender Registration. A conviction for domestic battery with a victim under 18 years old can lead to registration along with a host of other offenses.

Immigration:

While briefly summarized below, the immigration consequences of a criminal case is too vast an area to be fully discussed covered here. Although judges are obligated to advise a defendant of certain immigration consequences, it is now incumbent for defense counsel under Padilla v. Kentucky to also properly advise their non-citizen clients of certain collateral consequences.

It should be known that a disposition of Court Supervision is a conviction for immigration purposes even though the Defendant does not have a judgment under Illinois law and is eligible for expungment. In addition, first offender 710 & 410 Probation results in a conviction for immigration purposes. Also, an Alford plea where a Defendant maintains his innocence, is treated as an admission of the alleged facts and fits the immigration definition of a conviction. The following are considered convictions under Immigration law: Court Supervision, Conditional Discharge, Probation, Prison, guilty but mentally ill and an Alford plea.

An exception to a conviction for immigration purposes may exist for violations under county or municipal ordinances. Where a non-citizen Defendant has been charged with a local ordinance violation it is important to review the ordinance to determine whether the prosecution must prove guilt beyond a reasonable doubt, the Defendant is entitled to a jury trial and has a right to an attorney to represent him at no expense. In some cases a conviction for an ordinance violation may not be used against the Defendant. Under immigration law a conviction is defined in I.N.A. 101(a)(48), 8 U.S.C. 1101(a)(48).

Given the complexity and frequent changes in immigration law, it is strongly recommended that attorneys and/or their client consult with an immigration lawyer to determine the impact a particular charge might have on their immigration status.

Employment:

Although there is no standardized employment application form, almost all employers inquire about criminal convictions and run a background check. Employers are not permitted to ask about arrests that did not result in a conviction or obtain records of a sealed or expunged arrest and conviction. However, due to the prevalence of private companies that collect and publish criminal records, an online search may still show an arrest and charge even if the case was dismissed or expunged.

Public Assistance Eligibility: Public Aid Code, 305 ILCS 5/1-10

Defendants convicted of Class X and Class 1 felony drug offenses are eligible for food stamps, but cannot get cash assistance. People convicted of other drug felonies are eligible for food stamps but cannot get assistance for two years unless they are in drug treatment.

Although this is not an exhaustive list, it should serve as a useful guide of the most common collateral consequences. Most clients do not think of, or are unaware of, such consequences. Indeed, they may not surface until months or even years after the court case is concluded. Criminal law practitioners are encouraged to advise clients that these collateral consequences may exist and have their clients inquire about the ramifications of a plea or finding of guilt. In the long run, the collateral damage can often be more harmful than the actual sentence imposed in court.

David J. Winer is a partner with the Law Office of Winer & Winer. He concentrates in Criminal, DUI/ Traffic and Secretary of State license reinstatement hearings in Lake and County. Evan J. Winer edited this article.